State ex rel. Roy Allen S. v. Stone, No. 23355

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY
• Citation: 196 W.Va. 624,474 S.E.2d 554
• Parties: STATE of West Virginia ex rel., ROY ALLEN S., Petitioner, v. Honorable Robert B. STONE, Judge of the Circuit Court of Monongalia County, Thomas S. and Tina Marie P.S., Respondents.
• Decision Date: 14 June 1996
• Docket Number: No. 23355

Page 554

474 S.E.2d 554 196 W.Va. 624 STATE of West Virginia ex rel., ROY ALLEN S., Petitioner,
v.
Honorable Robert B. STONE, Judge of the Circuit Court of
Monongalia County, Thomas S. and Tina Marie P.S.,
Respondents. No. 23355. Supreme Court of Appeals of West Virginia. Submitted April 23, 1996.
Decided June 14, 1996.

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[196 W.Va. 626] Syllabus by the Court

1. In determining whether a law violates the Due Process Clause in Section 10 of Article III of the West Virginia Constitution, the first step is to determine whether the challenged provision implicates a liberty or property interest.

2. Although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause in Section 10 of Article III of the West Virginia Constitution.

3. In the absence of special circumstances which would justify an exception, a petition by a putative biological father seeking to establish his paternity over a child who was born while the mother was married to another man may not proceed unless the putative father clearly and convincingly proves as a threshold matter that he has established a substantial paternal relationship with the child. The putative father's showing need not be made, however, if no person or party (named or intervening and including the guardian ad litem ) contests the petition.

4. Because a paternity action is in the nature of an equitable proceeding, and pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, a circuit court has discretion to impose attorney's fees on litigants who bring vexatious and groundless lawsuits.

5. " 'Where a statute serves an urgent and necessary public purpose but is technically deficient for constitutional reasons, this Court will apply the remedy and give the statute, wherever possible, an interpretation which will cure its defect and save it from total invalidation.' Syllabus Point 2, Anderson's Paving, Inc. v. Hayes, W.Va. , 295 S.E.2d 805 (1982)." Syl. pt. 2, McGuire v. Farley, 179 W.Va. 480, 370 S.E.2d 136 (1988).

6. A putative biological father must prove by clear and convincing evidence the following factors before he will have standing to raise the issue of paternity of a child born to a married woman who is not his wife: (1) that he has developed a parent-child relationship with the child in question, and (2) that the child will not be harmed by allowing the paternity action to proceed.

7. When a putative biological father raises a paternity claim, the child must be joined and a guardian ad litem appointed. The circuit court should conduct a preliminary hearing to determine whether the requisite preconditions are present. In addition, the preeminent factor in deciding whether to grant or deny blood testing is the child's best interests. The analysis of each factual situation is necessarily a discretionary decision for the circuit court, and the finding by the circuit court will not be reversed absent an abuse of discretion.

J. Michael Benninger, Wilson, Frame, Benninger & Matheny, Morgantown, for Petitioner.

Fonda L. Holehouse, Morgantown, for Respondent Thomas S.

Cheryl A. McCray, Hamstead, Hamstead & Williams, Morgantown, guardian ad litem.

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[196 W.Va. 627] Linda M. Gutsell, Rose, Padden & Petty, Morgantown, for Respondent Tina Marie P.S.

CLECKLEY, Justice.

In this original proceeding in prohibition, we must decide whether W.Va.Code, 48A-6-1 (1993), ¹ violates the Due Process Clause in Section 10 of Article III of the West Virginia Constitution. The relator, Roy Allen S. (Roy), ² requests this Court to issue a rule to show cause why a writ of prohibition should not be issued against the respondent, the Honorable Robert B. Stone, Chief Judge of the Circuit Court of Monongalia County, as a result of the circuit court's order and opinion directing that a blood sample be taken from the minor child, Jennifer S. (Jennifer), for the purpose of determining her paternity.

I.

FACTUAL AND PROCEDURAL HISTORY ³

Roy and Tina Marie P.S. (Tina), ⁴ were married on January 29, 1983. Roy and Tina had a very tumultuous relationship. According to the respondent, Thomas S. (Thomas), Tina became pregnant by him on September 1, 1986. ⁵ Tina gave birth to Jennifer on June 1, 1987, and designated on the birth certificate that Roy was the father of the child, even though Thomas was present during the birth of the child. Roy did not return to his wife until some time after the birth of Jennifer. Over the course of three years, Roy's and Tina's relationship did not improve. According to Thomas's brief, Tina maintained contact with Thomas during this period and took Jennifer to visit him frequently. Tina eventually filed for divorce and began living with Thomas. At that time, Tina had custody of her two children. ⁶ Thomas stated he undertook various caretaking responsibilities and the children developed a strong bond with him during this period.

According to Roy's brief, in the complaint for divorce filed by Tina on July 22, 1991, she specifically alleged " 'two children were born of the marriage, Christina [S.] ..., born September 19, 1983[,] and Jennifer [S.] ..., born June 1, 1987.' " (Emphasis in brief). In his answer to the complaint, Roy admitted two children were born of the marriage. On or about August 6, 1992, Tina signed a joint parenting agreement which indicated she and Roy had reached an agreement concerning joint custody that was for the benefit "of their children." This agreement was filed with the family law master and incorporated into the family law master's Findings of Fact and Conclusions of Law dated August 10, 1992. The circuit court entered the final divorce decree which approved the joint parenting agreement on August 25, 1992.

Sometime after entry of the divorce decree, Tina filed a petition to change and modify custody as set out in the final divorce decree. Specifically, Tina wanted full custody of the two children and additional support from Roy. Roy filed a counter petition seeking custody of the two children. A full evidentiary hearing concerning the petitions for custody was held on December 8, 1992. At this hearing, both Roy and Tina testified the two minor children were born of their marriage. ⁷.

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[196 W.Va. 628] ⁷. ⁷ The family law master then filed his Findings of Fact and Conclusions of Law on December 14, 1992, which granted Roy full custody of both minor children.

On December 23, 1992, Tina filed a petition for review of the family law master's findings alleging Roy was not the biological father of Jennifer. By a memorandum order dated February 3, 1993, the circuit court denied Tina's petition for review citing that Tina " 'testified on at least two (2) occasions that Jennifer was born as a result of the marriage of the parties ... [and that] both parties held ... [Roy] ..., out to the world as the father of Jennifer.' " Affirming the family law master's findings, the circuit court also found " 'it is inappropriate, insensitive and boarding [sic] on unconscionable' " to assert for the first time on review that someone other than Roy, who was Tina's ex-husband, might be the biological father of the child. ⁸ In her response to the petition for a writ of prohibition, Tina explains that she admitted during the divorce proceedings that Roy was the father of the two minor children because her then-attorney advised her she could not raise the issue of paternity in that forum. Apparently after obtaining new counsel, Tina first raised the issue of paternity during her petition for review of the family law master's findings. Under Tina's accounting of the facts, Jennifer was conceived at a time when she and Roy were living separate and apart although still legally married.

On April 15, 1994, Thomas filed a paternity action against Tina and Roy asserting that he, and not Roy, is the biological father of Jennifer. On June 22, 1994, a hearing was conducted by the family law master. In his recommended order filed on September 13, 1994, the family law master dismissed Thomas's petition finding he had no standing to bring the paternity action. Both Tina and Thomas filed petitions for review of the family law master's order. Oral arguments were held on December 14, 1994. On November 28, 1995, the circuit court entered an order reversing the family law master's dismissal of the paternity action and remanding the matter back to the family law master to conduct proceedings consistent with the memorandum order. Expressing concern that the family law master's interpretation of W. Va.Code, 48A-6-1(e)(8), raised serious constitutional concerns of equal protection and due process, the circuit court held Thomas, as the putative biological father, was entitled to pursue his paternity action. The circuit court also found that, because Thomas was a stranger to the divorce action, he could not be barred under doctrines of res judicata or collateral estoppel. The circuit court subsequently appointed a guardian ad litem for Jennifer. Roy filed a petition for a writ of prohibition to be issued by this Court to prevent the paternity test for Jennifer.

II.

DISCUSSION

A. Procedural Issues

At the center of this controversy is the question whether a person claiming to be the biological father of a child may raise the issue of paternity if the child was born during a valid marriage between the mother and another man. The relevant statute, W. Va.Code, 48A-6-1(e), provides, in part:

"A paternity proceeding may be brought by any of the following persons:

"(1) An unmarried woman with physical or legal custody of a...